In re bullets and Obama

Republicans are always keen to charge Democratic Presidents with executive overreach, and vice-versa, especially when the White House is occupied by an especially-despised and aspirational President. But in the handwringing over moves to limit access to certain kinds of bullets, some critics have backed a lame horse. The Gun Control Act of 1968, as amended, bans the “manufacture or import [of] armor piercing ammunition.” 18 U.S.C. § 922(a)(7). In turn, the Act excludes from its definition of armor-piercing ammunition those “projectile[s] which the Attorney General finds [are] primarily intended to be used for sporting purposes….” 18 U.S.C. § 921(a)(17)(C). In effect, the Act expressly gives the AG (“the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed,” United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc)) discretion to classify or reclassify ammunition within this rubric; critics could scarcely have picked a worse windmill at which to tilt than the absurd notion that it is executive overreach for the Attorney General to exercise an authority that Congress has explicitly vested in him. This is not the President legislating without legislation; the legislation exists. It has been held in abeyance from a certain subset of bullets by the discretion of the AG, who is now exercising his discretion to expose that subset of bullets to the strictures of the Act.

One may certainly make the argument that the reclassification is arbitrary and capricious, but that is an APA claim, not one of executive overreach in the sense tendered. (To be sure, in one sense one might characterize any 706 claim as being one of executive overreach, but that’s not the sense that the critics intend.) One might also argue that there’s a non-delegation problem too; that’s a tough claim to press, but it’s not inconceivable. But this is not the redoubt on which to make one’s stand against the spectre of “King Barack.” As Justice Jackson put it in the steel seizure case: “When the President [or his hand, the AG] acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)